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Facts
The assessee, WEG Industries (India) Private Ltd., filed an appeal against the assessment order for AY 2021-22. The core of the dispute involves transfer pricing adjustments made by the TPO/AO/DRP concerning the assessee's manufacturing activity and interest on overdue receivables and unbilled revenue.
Held
The Tribunal restored the grounds related to transfer pricing adjustments to the AO for fresh examination of FAR comparability between AE and non-AE transactions. The issue of interest on overdue receivables was confirmed as a separate international transaction, but the adjustment for interest will be subsumed if a working capital adjustment is granted. The interest on unbilled revenue was restored to the TPO for fresh adjudication.
Key Issues
Whether the transfer pricing adjustments made by the TPO/AO/DRP for manufacturing activity and interest on overdue receivables/unbilled revenue are justified, and whether internal comparables were wrongly rejected. The issue of limitation for the assessment order was also raised but dismissed.
Sections Cited
143(3), 144C(13), 144B, 153, 92C(3), 92C(1), 92C(2), 115JB, 115JD, 234A, 234B, 270A, 143(2), 10B(1)
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Income Tax Appellate Tribunal, “C” BENCH : BANGALORE
Before: SHRI PRASHANT MAHARISHI & SHRI KESHAV DUBEY
Per Prashant Maharishi, Vice President
This appeal is filed by WEG Industries (India) Private Ltd. (the assessee/appellant) for the assessment year 2021-22 against the appellate order passed by the Assessment Unit [ld. AO] u/s. 143(3) r.w.s. 144C(13) r.w.s. 144B of the Income Tax Act, 1961 [the Act] ] dated 22.10.2024 wherein the income returned
by the assessee as per return of income on 10.3.2022 at Rs. NIL is determined at Rs.30,31,55,205.
The assessee is aggrieved with the same and has preferred this appeal raising the following grounds of appeal :-
“GENERAL GROUND ASSESSMENT ORDER IS BAD IN LAW 1. On the facts and in the circumstances of the case and in law, the final assessment order (Order') passed by the Assessment Unit, Income-tax Department ('Ld. AO') dated 22 October 2024, under section 143(3) read with section 144C(13) read with section 144B of the Income- tax Act, 1961 ('the Act'), in conformity with the directions of the Hon'ble Dispute Resolution Panel-2, Bangalore ('Hon'ble DRP') to the extent prejudicial to the Appellant, is bad in law, factually erroneous and liable to be quashed. LEGAL GROUND FINAL ASSESSMENT ORDER IS BARRED BY LIMITATION 2. On the facts and in the circumstances of the case and in law, the order dated 22 October 2024 passed by Ld. AO, under section 143(3) read with section 144C(13) read with section 144B of the Act, is barred by limitation under section 153 of the Act, and is thus void-ab-initio, illegal and bad in law and liable to be quashed. MANUFACTURING SEGMENT 3. On the facts and circumstances of the case and in law, the Ld. Transfer Pricing Officer ('TPO')/ Ld. AO/ Hon'ble DRP erred in making the transfer pricing adjustment of Rs. 299,900,000 to the arm's length price ('ALP') of the Appellant's manufacturing activity.
4. On the facts and circumstances of the case and in law, the Ld. TPO/ Ld. AO/ Hon'ble DRP erred in making adjustment towards manufacturing activity and in doing so, grossly erred in i) rejecting the TP documentation under section 92C(3) of the Act by contending that the data used in the computation of the ALP is not reliable or correct; despite the fact that the Ld. TPO/Ld. AO/Hon'ble DRP has selected same comparable companies as selected by Appellant in TP documentation, ii) rejecting the segment level margin of the Appellant without providing any cogent reasons on rejection of segmentation or on the allocation keys used by the Appellant in preparation of the segment; iii) adopting entity level margin of the Appellant; iv) rejecting the internal Transactional Net Margin Method ('TNMM') selected by the Appellant.
5. On the facts and circumstances of the case and in law, the Ld. TPO/ Ld. AO/ Hon'ble DRP erred restricting the Transfer Pricing adjustment to the value of international transactions.
6. On the facts and circumstances of the case and in law, the Ld. TPO/Ld. AO/ Hon'ble DRP ought to have excluded following companies from the final set of comparables: i) Portescap India Pvt. Ltd. ii) Rexnord Electronics & Controls Ltd. iii) Premium Transmission Pvt. Ltd. iv) Remi Elektrotechnik Ltd. v) Power Build Pvt. Ltd vi) Powerica Ltd. vii) Lucas-Tvs Ltd. viii)Elin Electronics Ltd.
7. Without prejudice to ground number 4, on the facts and circumstances of the case and in law the Ld. AO/ Ld.
TPO has erred in computing the margin of tested party by considering duty drawback as non-operating income.
8. Without prejudice to ground number 4, on the facts and circumstances of the case and in law, the Ld. TPO/ Ld. AO/ Hon'ble DRP, erred in i) in stating that the Appellant was also provided with the computation of operating margins in respect of comparables by the Ld. TPO/ Ld. AO/ Hon'ble DRP, whereas the Appellant was not provided with the computation of operating margins of comparables; ii) computing operating profit margin ('OPM') of comparable companies while performing the comparability analysis. INTEREST ON RECEIVABLES AND INTEREST ON UNBILLED REVENUE
9. On the facts and circumstances of the case and in law, the Ld. TPO/ Ld. AO/ Hon'ble DRP erred in making adjustment of Rs. 3,186,999 in respect of notional interest on delayed receivables and Rs. 68,206 in respect of notional interest on unbilled revenue from Associated Enterprises ('AE').
10. On the facts and circumstances of the case and in law, the Ld. TPO/ Ld. AO/ Hon'ble DRP erred in making adjustment towards interest on delayed receivables and notional interest on unbilled revenue and in doing so, grossly erred in: i) treating the outstanding receivables and unbilled revenue as a separate international transaction; ii) not appreciating the fact that the Appellant is a debt free company; iii) disregarding the fact that the Appellant has not charged any interest to its non-AEs for the delay in collection of dues.
11. Without prejudice to ground number 10, on the facts and circumstances of the case and in law, the Ld. TPO/ Ld. AO/ Hon'ble DRP erred in i) not providing the benefit of the credit period agreed between the Appellant and its AEs; ii) that the invoices are raised in foreign currency and interest, if any, shall be charged on the basis markup on LIBOR; iii) not providing the computation of the interest on delayed receivables and unbilled revenue; iv) observing that the invoice wise details of receivables have not been submitted by the Appellant though the same were duly submitted on 29 September 2023.
ERRORS IN COMPUTATION OF INCOME
12. On the facts and in the circumstances of the case and in law, the Ld. AO erred in i) considering amount of TP Adjustment of INR 303,155,205 as deemed total income by disregarding the provisions of Section 115JB of the Act. ii) not allowing the credit available under section 115JD of the Act in computation of total income for AY 2021-22. iii) not allowing credit available under section 115JD of the Act in computation of interest under section 234A and 234B of the Act. INITIATION OF PENALTY PROCEEDINGS
13. On the facts and in the circumstances of the case and in law, the Ld. AO erred in proposing to initiate penalty proceedings under section 270A of the Act without appreciating the fact that the Appellant has not under reported its income. The Appellant craves leave to add to or alter, by deletion, substitution, modification or otherwise, the above grounds of appeal, either before or during the hearing of the appeal.”
3. At the time of hearing, the ld. AR submitted that it does not want to press ground No.2 on the issue of limitation and the same is also mentioned by email dated 4.8.2025. By that letter the assessee has withdrawn the aforementioned ground No.2 and has requested to proceed on merits. In view of the above facts, ground No.2 is dismissed.
Facts of the case shows that assessee is engaged in the business of manufacturing different kinds of electrical motors and generators. This is the only segment of the business of the assessee. It is wholly owned subsidiary of WEG Equipamentos Electricos, SA. The manufacturing of electrical motors and generators are carried out as per specification, design and technical specific of a buyer mostly and some of the products are also standard.
The assessee filed its return of income on 10.3.2022 at Rs.NIL. The return was picked up for scrutiny by issue of notice u/s. 143(2) of the Act by the National Faceless Assessment Centre, Delhi specifying the reason that there are high risk international transaction / entity reported in CbCR data along with other reason. As the case of the assessee is also selected for scrutiny on the TP risk parameter, reference was made to the ld. TPO through ITBA portal for determination of the arm’s length price [ALP] of the international transaction.
Assessee has entered international transaction of sale of products amounting to Rs.67.33 crores, purchase of raw material Rs.1.58 crore, payment of sales commission of Rs.7.54 lakhs, provision of marketing support services of Rs. 2.01 crores, provision of technical support services of Rs. 1.16 crores and other small transactions totalling in all to Rs. 83,51,23,058/-. As per the financial statement of the assessee, assessee has prepared segmental analysis of AE transactions and non-AE transactions. The operating margin in AE is 9.89%, whereas in non-AE there was a loss of (-) 4.18% and overall operating margin was negative at (-) 1.24%. In the TPSR the assessee selected itself as a tested party, combined all other transactions together and adopted Transactional net margin Method [ TNMM ] as the most appropriate method selecting the PLI of OP/OC and internal TNMM was adopted as comparable. The claim of assessee is that assessee also made the preliminary benchmarking study by selecting 10 comparable who are having 35th & 65th percentile margin of 5.87% & 10.35% with median margin of 8.16%. As the margin of the Ae Transactions is 9.89% and the profit margin of non-AE transaction is (-) 4.18%, international transaction with its AEs are claimed to be at arm’s length.
The ld. TPO computed the overall margin at (-) 1.11%. by treating foreign exchange gain/loss was treated as operating in nature, whereas the assessee considered it non-operating. The ld. TPO examined the TPSR as well as Form 3CEB and then held that the data used by the assessee in the computation of ALP is not reliable and therefore he rejected the applicability of internal TNMM comparability. As he has rejected the segmental financial margins and further other comparability study wherein assessee used the data only of 2 financial years, same was also rejected stating that weighted average median margin of the comparables taking three years data is required to be computed. Accordingly TP documents were rejected and he proceeded to determine the ALP by accepting the comparables proposed by the taxpayer, but by taking 3 financial years to compute the weighted average median wherein the 35th percentile was 5.87% and 65th percentile was 10.35% and median margin was 8.60%. A show cause notice was issued on 22.9.2023 which was replied by 29.9.2023. However, assessee did not submit any objection to the comparables and accordingly the ld. TPO determined the ALP based on the above comparable and computed a shortfall of Rs.29,99,00,000/-.
The ld. TPO further found that there is an overdue outstanding receivable from its AEs which is a separate international transaction, therefore interest needs to be computed on the same. The ld. TPO computed the interest by applying the SBI PLR of 12.27% amounting to Rs.31,86,999. Similarly he also computed interest on unbilled revenue at Rs.68,206.
Accordingly the order u/s 92CA(3) was passed on 28.10.2023 proposing total adjustment of Rs.30,31,55,205. Based on this, draft assessment order u/s. 144C(1) of the Act was passed on 27.12.2023 proposing the income to be assessed at Rs.30,31,55,205.
The assessee filed objections before the ld. DRP which passed its direction on 27.9.2024. The assessee’s main objection was non-consideration of internal TNMM analysis undertaken in the TPSR which was rejected by the ld. TPO. As per disposal of objection No.2, the ld. DRP held that the position of the ld. TPO is well founded as TNMM requires rigorous comparability analysis and the reliance on internal comparables must meet stringent standards. Reliance placed by the assessee on internal comparables fails to demonstrate that the function performed, assets employed and risks assumed in AE transactions are also comparable to those in non-AE transactions. The ld. DRP also rejected that mere identification of costs and margins does not suffice without adequate evidence that adjustment for material differences have been made. Further the ld. DRP held that internal comparable shown by the assessee lacks robust supporting evidence and assessee does not sufficiently demonstrate that non-AE segment is comparable to its AE segment. The DRP further held that the ld. TPO’s refusal to accept the internal comparable without thorough examination of functional and economic analysis, judicial precedent cited does not help the case of the assessee. Therefore the ld. DRP also rejected this. The assessee also requested for the working capital adjustment and also submitted a chart after working capital adjustment showing that median margin of the comparable is 1.86%. The ld. DRP rejected this contention and agreed with the ld. TPO that assessee has failed to demonstrate material differences in the working capital and hence rejected the same.
The ld. DRP also rejected the objection of the assessee with respect to the computation of ALP on interest on overdue receivable. It held that by not charging interest on overdue receivable, assessee is providing financial benefit to its AEs and merely not charging interest on non-AE cannot be the basis for not making this adjustment.
Accordingly the order of the ld. TPO was upheld and based on this, a final assessment order was passed on 22.10.2024 under section 143 (3) read with section 144C (13) read with section 144B of the income tax act on 22nd of October 2024 determining the total income of the assessee at ₹ 303,155,205/–.
Assessee is aggrieved and is in appeal before us.
The learned authorised representative submitted that assessee is aggrieved by the action of the learned lower authority in rejecting internal comparable which is transactions with the non-associated enterprises. He submitted paper book containing 239 pages and further the annual reports of the comparable companies in separate paper book starting from 242 to 2204 pages.
He submitted that assessee is routine manufacture that assumes normal business risk associated with the manufacturing activity. It manufactures, export and import of rotating electrical machinery, mechanical machinery and related devices. It also provides market support services to its group companies. He submitted that assessee adopted the combined transaction approach for benchmarking its international transaction of purchase of raw materials and consumables, provision of marketing support services, provision of technical support services, availing of technical support services, payment towards sales commission, payment of liquidated damages and reimbursement of expenses. Assessee adopted transactional net margin method as the most appropriate method.
assessee is engaged in manufacturing and selling of similar products and rendering of similar services to both associated enterprises and non associated enterprises.
Detailed segmental analysis is prepared by the company in order to compare margin of associated enterprises and non associated enterprises. conclusion reached by the company is that it has an profit level indicator of operating profit to operating cost of 9.89% during the financial year 2020 – 21 from the transaction with the AE as against (minus) 4.18% from third parties. Since the margin earned by the assessee in its AE segment is more than that of Non Ae segment it is concluded that the international transaction between the assessee and its associated enterprises are at arm's-length.
The assessee also made an alternative benchmarking by adopting transactional net margin method selecting the same PLI and carrying out a fresh search on prowess database. It adopted the filters of availability of data, persistent loss, turnover filter, other income greater than 50%, negative net worth, functional comparability, related party transactions. Accordingly it finally selected 10 comparables whose 35th percentile margin was 7.16% and 65th percentile margin was 10.86% whereas median margin was 9.73% and the margin of the assessee was computed at 9.89% thus in the alternative benchmarking analysis also the assessee submitted that its international transactions are at arm's-length.
learned transfer pricing officer passed order under section 92CA (3) of the income tax act dated 28 August 2023 and submitted that the ld TPO has rejected internal TNMM analysis without even verifying.
The ld DRP also without looking and verifying internal TNMM benchmarking rejected it.
Internal TNMM analysis is based on proper segmental analysis and proper allocation keys for expenses and raw material consumption.
Without verification of Internal TNMM its rejection is not proper.
Interest on overdue receivable is subsumed if the assessee is granted working capital adjustments. Even otherwise invoices are prepared in USD so applicability of SBI PLR is inappropriate.
The ld CIT DR vehemently supported the orders of the ld Lower authorities. It was submitted that assessee submitted that its transaction with the non associated enterprises should be compared with the transaction of the associated enterprises and the margin in the transaction with the non associated enterprises is in negative whereas the margin in case of transactions with the associated enterprises are positive. Internal transactional net margin method comparability
standard should satisfy that assessee is performing same activities with the associated enterprises and also with the non associated enterprises. If the functions assets and risk involved in transactions with the non associated enterprises and associated enterprises are different internal transactional net margin method comparables cannot be used. It was further stated that even the internal TNMM comparability standard should pass all the test which are relevant for external comparables. She extensively referred the order of the learned transfer pricing officer and the learned dispute resolution panel that why internal TNMM comparability was rejected. It was stated that the data should be reliable. The data produced by the assessee is not at all even audited. Therefore there is no infirmity in the order passed by the learned TPO and the direction of the learned DRP in not accepting the internal TNMM comparable suggested by the assessee.
With respect to the interest on receivable, it was submitted that if internal transactional net margin Method comparable is accepted, there cannot be any working capital adjustment to be granted to the assessee and further in that case interest on overdue receivable is sustained. However if the alternative benchmarking suggested by the assessee or of the learned transfer pricing officer is upheld, then the issue of working capital adjustment can be considered. She further agreed that if the invoices are prepared in US dollar, the SBI PLR should not have been used.
The learned authorised representative submitted that assessee has obtained the audited segmental results qua associated enterprises and non-associated enterprises with proper allocation keys for allocation of raw material cost and other expenses. Those are also now audited which can be verified.
We have carefully considered the rival contention and perused the orders of the learned lower authorities. In TP Order in paragraph number 5.5, analysis of the transfer pricing document was made by the learned TPO which states that TPO is mainly concerned about whether the information or data used in the computation of the arm's-length price is reliable and correct. If he is of the opinion that the information or data used in the computation of arm's-length price is not reliable or correct, the TPO may proceed to determine the arm's-length price in relation to the international transactions in accordance with provisions of section 92C (1) and 92C (2) based on such material information or documents available with him. Accordingly, he rejected the segmental analysis. The alternative benchmarking analysis was also rejected as weighted average margin is used for the two financial year financial year 2018 – 19 and 2019 – 20.
When the matter reached before the learned dispute resolution panel the objection was raised is dealt with in paragraph number 3.1 of the direction. The learned dispute resolution panel held that the TPO's position is well founded as the transactional net margin method requires a rigorous comparability analysis, and reliance on internal comparable must meet stringent standards. The assessee's reliance on internal comparable fails to demonstrate that the functions performed, assets employed and risks assumed in associated enterprise transactions are truly comparable to those in non- associated enterprise transactions. The mere identification of cost and margins does not suffice without evidence that adjustment of material differences have been adequately addressed as mandated by rule 10 B (1). Further the assessment of ALP based on internal comparable lakes robust supporting evidences. The TPO’s scepticism regarding the genuineness of the international transaction is valid given that the financial analysis presented does not sufficiently demonstrate that the non-AE segment is comparable in all material aspects to the associated enterprise transaction. While the assessee cites various judicial precedents advocating for the preference of internal comparable , these cases emphasise that such comparison must be substantiated with detailed functional and economic analysis. The TPO's refusal to accept the internal comparable is without a thorough examination actually goes
with the ratio of judgements of judicial interpretation, reinforcing the need for a higher standard of proof in establishing the reliability of the asserted margins. Accordingly the action of the learned transfer pricing officer in rejecting the internal TNMM analysis was found to be appropriate.
According to us, in comparability analysis undeniably the internal comparables are the best comparables because of several factors which eliminates the difference of external comparables, such as accounting policy, accounting assumptions, information availability, etc. as those are having closer relationship with the transaction with AE. Internal comparable , where they exist must satisfy all comparability factors in the same way as external comparables.
In this case assessee has submitted internal comparable stating that its functions with AE and non Ae are same. AE transaction is 22 % of the total transaction. Principally the findings of the ld AO and Ld DRP are correct that if the NON AE segment and AE segments does not have same FAR, the internal comparability fails. But first such data needs to be examined. In this case assessee has prepared these data , which were discarded stating that it is unreliable. None of the authorities have stated the reasons that why such data is unreliable. There is no finding that FAR of the AE and NON Ae transactions are different. Further the difference between
the profitability between Ae and Non Ae transaction itself suggest that the explanation of the assessee cannot be accepted at its face value.
In view of the above facts we restore this ground of appeal back to the file of the ld AO with a direction to the assessee to substantiate similarity of FAR between AE and non AE transactions. The ld TPO may examine the same and then decide whether the transaction are comparable and then decide the issue afresh . Accordingly Ground No 3 to 8 of the appeal are allowed as indicated above.
24. On the issue of interest on overdue receivable, we confirm the opinion of the learned transfer pricing officer and direction of the learned dispute resolution panel that outstanding receivable unpaid beyond due date is a separate international transaction which requires to be benchmarked separately. However, if on issue of the determination of arm's-length price as decided as per Ground no 3 to 8 of appeal , it was found that internal comparability fails and the transaction of the assessee with its associated enterprises is required to be compared with external comparable , either through alternative benchmarking submitted by the assessee or by separate process of comparability conducted by the learned TPO, if any working capital adjustment is required to be given, then this adjustment of interest on overdue receivable is subsumed in adjustment of the main transaction and no further adjustments would be required for this. Otherwise, the interest is required to be imputed by taking appropriate interest rate considering that invoices are prepared in US dollars. The SBI PLR rate adopted by the learned TPO presuming that invoices are prepared in rupees, which is not correct, is rejected. Accordingly, the learned transfer pricing officer is directed to 1st determine the issue of adjustment of working capital and then decide/compute the interest on overdue receivable.
25. Third adjustment of computation of interest on unbilled revenue is dealt with at paragraph number 11 by the learned transfer pricing officer. It seems that by looking at that data the learned TPO wanted to know that what is the month and year in which the services are rendered and what is the time on which the bills raised for those services. Thus TPO wants to be ascertain that despite the services rendered by the assessee in earlier time to its associated enterprises and the invoices are raised at a later point of time which shows that services availed to the associated enterprises after considerable time lag are billed to the enterprises. Assessee did not furnish this data. Therefore, we restore this issue back to the file of the ld. TPO, with a direction to the assessee to establish first that there is no unbilled revenue and invoices are issued to the AE in time. Accordingly Ground no 9 and 11 of the appeal are allowed as indicated above.
26. Ground no 12 is with respect to the TP adjustment added back to book profit u/s 115 JB of the Act, we direct the ld AO to delete the same as there is no such provision u/s 115 JB of the act.
27. Ground no 13 is against initiation of penalty proceedings is premature and hence dismissed.
In the result, the appeal by the assessee is partly allowed.
Pronounced in the open court on this 28th day of October , 2025.